Negligence & Intentional Tort

Issues: Governmental immunity; Mack v. Detroit; The highway exception; Nawrocki v. Macomb Cnty. Rd. Comm'n; Grimes v. Department of Transp.; Standard to apply in determining as a matter of law whether a portion of a highway was "designed for vehicular travel" as used in MCL 691.1402(1); Motions under MCR 2.116(C)(7); Patterson v. Kleiman; Maiden v. Rozwood; Dextrom v. Wexford Cnty.; Kincaid v. Cardwell; Whether the plaintiff pleaded sufficient facts to create a genuine issue of material fact; Michigan's notice-pleading standard; Stanke v. State Farm Mut. Ins. Co.; MCR 2.111(B)(1); Curing defective pleadings by amendment before trial; MCR 2.118(A)(2); Ben P. Fyke & Sons, Inc. v. Gunter Co.; Challenge to the factual support for plaintiff's claim that the condition giving rise to her injury was within the improved portion of the highway designed for vehicular travel; "Vehicular," "vehicle," and "travel" defined; Assertion that parallel parking lanes are not designed for vehicular travel; Contention that the paint markings used on a highway permit an inference about its actual design; Michigan Department of Transportation (MDOT)

Court: Michigan Court of Appeals (Published)

Case Name: Yono v. Department of Transp.

e-Journal Number: 58156

Judge(s): M.J. Kelly, Beckering, and Borrello

 

On remand from the Michigan Supreme Court, the court held that plaintiff-Yono properly pleaded in avoidance of governmental immunity, and that defendant-MDOT did not present any admissible evidence that the area of the highway (M-22) at issue fell outside the improved portion of the highway designed for vehicular travel. Thus, the court affirmed the trial court's order denying MDOT's motion for summary disposition under MCR 21.116(C)(7). Yono sued MDOT after "she fell and was injured while walking to her car, which was parked in that portion of M-22 where parking is permitted." In a prior appeal, a majority of the court agreed with the trial court that MDOT failed to show that it was entitled to governmental immunity as a matter of law. The Supreme Court remanded the case to the court to consider "(1) what standard a court should apply in determining as a matter of law whether a portion of highway was 'designed for vehicular travel,' as used in MCL 691.1402(1); and (2) whether the plaintiff has pled sufficient facts to create a genuine issue of material fact under this standard." The court concluded that "in order to plead in avoidance of governmental immunity under the highway exception," as it applied to MDOT, Yono only had to allege facts sufficient to place MDOT "on notice that she suffered an injury caused by the Department's failure to maintain the highway in reasonable repair and the condition that caused her injury was located within an area of the improved portion of the highway that was designed for vehicular travel." The court found that "Yono's complaint met the minimum requirements for pleading in avoidance of governmental immunity." It also concluded that the Supreme Court's construction of the phrase "improved portion of the highway designed for vehicular travel" did "not limit the State's duty to maintain to only that portion of the highway that is used as the main or primary travel lane - stated another way, our Supreme Court did not limit the duty to that portion of the highway used as a thoroughfare." Rather, MDOT "continues to have a duty to maintain in reasonable repair any part of the highway that was specifically designed - that is, planned, purposed, or intended - to support travel by vehicles (manpowered, animal powered, or motorized), even if the lanes were designed as 'specialized, dual-purpose, or limited-access travel lanes.'" The court found that since MDOT "did not present any admissible evidence to rebut Yono's allegations that the area of the highway at issue was part of the improved portion of the highway designed for vehicular travel," it failed to show that it was entitled to summary disposition under MCR 2.116(C)(7).

 

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This summary also appears under Animal Law

 

Issues: Action for injuries arising from a dog attack; Whether summary disposition was premature; Liparoto Constr., Inc. v. General Shale Brick, Inc.; MCR 2.116(C)(10); Maiden v. Rozwood; MCR 2.116(G)(6); Evidence of "common canine behavior"; Hiner v. Mojica; Failure to establish a genuine issue of fact that defendant-West Shore Rental Management, Inc. was "knowledgeable of the dog's dangerous propensities"; Szkodzinski v. Griffin; Feister v. Bosack; Inadmissible "hearsay"; SSC Assocs. Ltd. P'ship v. General Ret. Sys. of the City of Detroit; MCR 2.116(C)(8); Spiek v. Department of Transp.; Prima facie case of negligence; Brown v. Brown; Premises liability; Merritt v. Nickelson; A tenant's "exclusive legal possession and control of the premises against the owner for the term of his leasehold"; Ann Arbor Tenants Union v. Ann Arbor YMCA; Effect of the fact the plaintiff was allegedly attacked on her own property; Applicability of Klimek v. Drzewiecki

Court: Michigan Court of Appeals (Unpublished)

Case Name: James v. Gutherie

e-Journal Number: 57966

Judge(s): Per Curiam – Ronayne Krause, Wilder, and Stephens

 

The court held that defendant-West Shore Rental Management was entitled to judgment as a matter of law because the plaintiff failed to establish a genuine issue as to whether it knew of the "dangerous propensities" of a dog owned by the defendant-tenant (Gutherie) that allegedly attacked plaintiff on her own property. Further, liability could not be extended to West Shore where it "did not have possession and control over the land where the dog was kept" and it "did not own or possess the dog." Plaintiff argued on appeal that "the trial court erred in granting summary disposition before she had the opportunity to factually develop" her claim against West Shore, and that as a matter of law, it was improper for it "to grant a (C)(10) motion before discovery was completed." The court disagreed. "Plaintiff offered her own affidavit in support of her contention that West Shore knew of Gutherie's dog's vicious propensities." However, the "hearsay statements in the affidavit were not admissible nor did they support a finding that further discovery would have yielded evidence that would create a material question of fact." Plaintiff offered no competent evidence to support her conclusions. She instead relied on double hearsay, repeating statements allegedly made by the defendant-homeowner's (Beddes) wife (J) about what West Shore allegedly knew. J "could only testify to West Shore making a party admission that it was aware that the dogs had destroyed furniture and had escaped through a window. Such an admission would not have aided the plaintiff's case. Chewing on furniture is a natural activity of dogs and not in and of itself dangerous. The same can be said about dogs trying to escape the confinement of their homes." Plaintiff "was unable to offer any evidence of vicious behavior on the part of the dog that allegedly attacked her." West Shore provided the affidavits of Beddes and its manager, "and the lease agreement as evidence of its lack of knowledge." Further, "West Shore did not have possession and control over the land where the dog was kept." Beddes commissioned West Shore to lease the premises, and "once the property was leased, the tenant obtained possession and control over the premises and West Shore was unable to enter" without first contacting Gutherie. The court also noted that "the alleged attack did not take place on the leased premises." While plaintiff cited Klimek, that case did not support her logic. "West Shore, unlike the neighbor in Klimek, did not control the dog nor have knowledge that the dog was dangerous." Absent "notice of the dog's dangerous propensities, there is no duty." Affirmed.

 

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